The legal issues around the DfE decision

The Department for Education isn't free arbitrarily to do what it wants over issuing or revoking Enforcement Notices. There is law defining both the circumstances under which an Enforcement Notice can be issued and under which it can be varied or revoked. The relevant law is the Education and Skills Act 2008. Section 115 defines the circumstances in which a notice can be imposed and Section 118 defines how and when it can be revoked. Here is the wording of section 115.

115         Power of Secretary of State to take enforcement action

(1)  This section applies to a registered independent educational institution if the Secretary of State is satisfied, taking into account relevant evidence, that one or more of the independent educational institution standards is or are not being met in relation to the institution.

(2)  In subsection (1) “relevant evidence” means—

(a)   the report of an inspection carried out by the Chief Inspector or an independent inspectorate, or

(b)    any other evidence in respect of the institution.

(3)  The Secretary of State may take enforcement action under section 116 against the proprietor of a registered independent educational institution to which this section applies if either of the following conditions is met.

(4)  The first condition is that—

(a)    the Secretary of State has, during the period of three years before the enforcement action is taken, required the proprietor of the institution to submit one or more action plans under section 114, and

(b)    any action plan required as mentioned in paragraph (a)—

(i)      has not been submitted, and the date specified by the Secretary of State under section 114(5)(b) has passed,

(ii)      was submitted but was rejected, or

(iii)      was approved but was subsequently not complied with.

(5)    The second condition is that—

(a)   at least two years before the enforcement action is taken the Secretary of State required the proprietor of the institution to submit an action plan,

(b)   at least one inspection of the institution has been carried out, by the Chief Inspector or an independent inspectorate approved under section 106 in relation to the institution, since that requirement was imposed, and

(c)    the Secretary of State has not at any time since that requirement was imposed been satisfied that the institution was meeting all of the independent educational institution standards.

Section 116 of the Act describes the possible kinds of enforcement action that can be taken, and Section 124 describes how a school can appeal against a Notice. Ampleforth did in fact make an appeal but withdrew it on 22nd January, before any hearings had taken place. So it was in effect agreed by all parties that the Secretary of State had the legal right to act as he did in imposing the ban. He had "relevant evidence" as described in 115(2)(a) in the form of the September emergency Ofsted inspection report, and under 115(5) the school had previously been required to produce an action plan (in response to an earlier Warning Notice issued under Section 114), at least one inspection had been carried out since and the Secretary of State had not in the intervening time given the school a clean bill of health by withdrawing the Warning Notice.

So the Enforcement Notice was issued on 27th November 2020 and went into force on 22 January 2021 on withdrawal of the school's appeal.

Section 118 describes how the Enforcement Notice can be revoked.

118         Relevant restriction imposed by Secretary of State: supplementary

(1)   This section applies where the proprietor of an institution is subject to a relevant restriction imposed by the Secretary of State under section 116(1)(a).

(2)   If the proprietor fails to comply with the relevant restriction the proprietor is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding 51 weeks or to a fine not exceeding level 5 on the standard scale (or to both).

(3)   In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003 (c. 44), for “51 weeks” in subsection (2) substitute “six months ”.

(4)  The proprietor may apply to the Secretary of State for the restriction to be varied or revoked.

(5)  On an application under subsection (4) the Secretary of State must—

(a)    vary or revoke the restriction as requested in the application, if the Secretary of State is satisfied that it is appropriate to do so because of any change of circumstance, and

(b)    in any other case, refuse to do so.

(6)  The Secretary of State must notify the proprietor of the decision made under subsection (5).

(7)  A decision to vary or revoke the restriction has effect as from the date on which the proprietor receives notice of it.
 

The key phrase is section 118(5). The school can apply under section 118(4) at any time for the ban on pupils to be revoked. Section 118(5) then defines what the Secretary of State can do in response. Under 118(5)(a), if he is “satisfied that it is appropriate” to lift the ban because there has been “any change of circumstance” making it appropriate, he must do so, and under 118(5)(b) he must refuse in any other case.

 

Ampleforth first applied for the ban to be revoked probably in late January. As a result DfE commissioned the February Ofsted inspection. It showed no evidence of any “change of circumstance” which in the context of this law can presumably only mean a transition from not meeting the Independent Schools Standards (ISS) to meeting them, or to really stretch the point, to have made great progress and to be very nearly meeting them. The Independent Schools Standards are clearly mentioned in Section 115 as the criteria against which action is decided on. As a result, DfE acted under section 118(5)(b) and refused to revoke the ban. DfE's public comment at the time was as follows.

“The most recent Ofsted inspection showed the school has made some progress, but not yet enough. The school is able to immediately request a further review of the restriction if it chooses, which would trigger another inspection."

Ampleforth did precisely that and DfE therefore commissioned yet another Ofsted inspection. Ofsted visited in March. This is where legally things get a bit murky, because the March Ofsted report was no better than the February one, and yet the DfE's response was the opposite. They revoked the ban.

On the face of it, that's hard to justify legally. If the situation following the February Ofsted was such that no "change of circumstances" had occurred making it "appropriate" to lift the ban, it is extremely hard to argue that a "change of circumstances" had happened at the time of the March inspection.

To the best of my knowledge there is nobody who has both the standing (i.e. the right to bring a case having been adversely affected by the decision) and the resources to seek a Judicial Review of the decision to revoke the ban, so the decision is going to stand. But it would be interesting to see what the case might be either way. I asked a solicitor friend to take an informal look. This is my paraphrase of what he told me.

The challenge would have to be on one or more grounds of illegality, procedural impropriety or unreasonableness.

Illegality is out. The Secretary of State for Education is the person with the legal authority to make the decision.

Procedural impropriety is similarly out, as the correct procedure has been followed: the decision was made following an application from the school to revoke the ban.

That leaves unreasonableness, in which case the Wednesbury standard applies. "A reasoning or decision is Wednesbury unreasonable (or irrational) if it is so unreasonable that no reasonable person acting reasonably could have made it". This isn't in any law, it was established by precedent in the judgement in the case Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223. So it goes back a good long way.

It is an extremely low bar for the government to clear. A decision can be wrong or even unreasonable, but still not be so utterly irrational that it fails the Wednesbury standard.

The government could argue that the wording of section 118(5)(a) gives the Secretary of State wide discretion and that he is free to take absolutely anything into account in deciding what is "appropriate", and isn't limited to the kinds of "relevant evidence" or even the criteria described in section 115. The government would claim that in essence the Secretary of State has unlimited discretion in deciding what evidence and criteria are relevant since nothing on the subject is directly stated in section 118. So he is free for instance to take into account the fact that the school has come up with a further action plan and promised to sort itself out.

The counterargument would be that sections 118 and 115 are two sides of the same coin and that the details of criteria and "relevant evidence" described in section 115 also apply to section 118, and that the wording was not repeated in full simply as a matter of brevity. It is therefore not rational to apply different criteria or different standards of evidence to section 118, and therefore if an Ofsted report was the basis for the decision to impose the ban, a further Ofsted report was the basis for the decision to maintain the ban then only an Ofsted report with a different outcome can be used to justify revoking the ban.

The government could also argue that if the (presumably educated and successful) parents of 165 prospective new pupils are keen to send their children there, then it's not on the face of it outrageously unreasonable (to Wednesbury standard) to allow them, even if Ofsted's opinion is that the school is unsafe.

Also, if a judge were to rule against DfE then he would in effect be demanding the closure of the school against DfE's wishes. Judges hate doing that sort of thing, and of course most judges have been educated at similar sorts of schools. (That shouldn't make a difference, but it does.)

That's not to say a case brought for Judicial Review couldn't succeed, but these are the arguments it would be up against. I don't think anyone can say how a case would go, because to the best of my knowledge, these sections of the Act have never been tested in court.

But I would strongly suspect that the legal advice DfE received leaned more towards "you can get away with this because of Wednesbury" rather than "this is the right decision". 

The same Wednesbury standard would have applied when Ampleforth was contemplating appealing the original ban, I'm pretty sure the legal advice the school received will have addressed the same issues of illegality, procedural impropriety or unreasonableness, and would have found that particularly in the light of the September Ofsted report, there was absolutely zero prospect of persuading a judge that the imposition of the ban was Wednesbury unreasonable. This is why the appeal was withdrawn in January before the matter reached a hearing.

Similarly, had  DfE decided to maintain the ban following the March Ofsted inspection, the school could have had no conceivable means of overturning it because that decision could not plausibly be argued as being unreasonable to any extent, let alone Wednesbury unreasonable. So the school had put itself in a position where it was completely at the mercy of the decision of the Secretary of State for Education. In addition the leadership team, just to make things more difficult for themselves, had insulted Ofsted and DfE in their earlier public statements. Since they had failed to get the school's safeguarding right, the school's survival did in fact depend on its lobbying capabilities.

There is to be a further Ofsted inspection in the autumn. The Warning Notice from July 2019 has not been withdrawn, it is still up on the DfE website though the Enforcement Notice has been taken down. Even though DfE has been extremely vague about what (if anything) it will actually do if Ampleforth fails the autumn Ofsted, it would seem that DfE has the legal power to re-impose the ban. It's entirely plausible that DfE would use that power if Ampleforth fails badly enough as there is a limit to how long DfE can be seen to let Ampleforth get away with inadequate safeguarding. Remember that DfE has not professed itself satisfied that Ampleforth meets the Independent School Standards since it issued the Warning Notice back in July 2018.

If the ban is re-imposed, then there will be the same merry-go-round of requests to revoke the ban, additional inspections and further decisions by the Secretary of State until around Easter next year, by which time the ban is either lifted again or the school acknowledges it can't stay open without the next September's intake. If Ampleforth hasn't got its safeguarding properly in order by then, it will most thoroughly deserve to close.